1937 Present : Abrahams C.J.

PONNIAH v. ABDUL CADER

543-P. C. Jaffna, 10,306

Criminal Procedure-Case for prosecution and defence closed-Magistrate's' power to call witness to fill a gap in the prosecution-Criminal Procedure Code, ss. 190 and 429-Excise Ordinance-Presumption regarding offence-Suspicious behaviour regarding excisable article-Ordinance No. 8 of 1912, s. 50-Production of copy of Police Information Book.

Where, in a summary trial, after the case for the prosecution and the defence had been closed the Police Magistrate reserved his order and on a subsequent date called further witnesses of his own motion,-

Held, the powers given to the Magistrate under section 429 of the Criminal Procedure Code should not be used to remedy a defect or to fill a gap in the case for the prosecution.

Where it is sought to prove a statement recorded in the information book of a Police station by the production of a certified copy, the copy must be produced by the Police officer, who recorded the statement.

The presumption created by section -50 of the Excise Ordinance does not arise merely because a man behaves in a suspicious way in respect of any excisable article.

Section 50 comes into effect when from the suspicious behaviour of the person charged an element of an offence under section 43 of the Ordinance can be proved.

APPEAL from a conviction by the Police Magistrate of Jaffna. The accused was convicted of transporting nine slabs of ganja without a permit and of possessing an excisable article, the possession of which is prohibited and sentenced to six months' rigorous imprisonment and to a fine of Rs. 500. The facts are stated in the judgment.

Rajapakse (with him Thiagaraja), for the accused, appellant.-Constructive possession is insufficient in criminal law. Here there is something even less than constructive possession.

A mass of hearsay has been admitted in evidence. The circumstantial evidence is insufficient to have a conviction.

The extract from the information book is inadmissible, since the person to whom the statement was made has not been called. After the close of the case for the prosecution and the defence, the Police Magistrate should not have called for further evidence. The circumstances do not justify the application of sections 429 or 190 of the Criminal Procedure Code. See Rex v. Dora Harris[1 (1927) 2 K. B. 587. ]. To apply the presumption under section 50 of the Excise Ordinance the conduct of the accused must amount to a breach under section 43, e.g., if he in fact was in possession, the prosecution need not go further and prove mens rea. (Silva v. Silva [2 32 N. L. R. 230. ] , Lockhart v. Fernando [ 27 N. L. R. 229.].

N. Nadarajah, C.C., for the complainant, respondent.-The hearsay evidence that has been recorded has not influenced the Police Magistrate in arriving at his decision. The circumstances are not only suspicious, but pont to the guilt of the accused.

Under section 50 of the Excise Ordinance, No. 8 of 1912, a presumption that the accused is guilty in a prosecution such as this (possession of ganja) arises, if the accused does not give a satisfactory explanation of his conduct in connection with its possession, and he is guilty.

The extract from the information book is a public document under section 74 of the Evidence Ordinance. Ordinance No. 12 of 1864, which is at the end of the Evidence Ordinance, makes admissible a certified copy of such a document.

Rajapakse (with permission of the Court), in reply.-Ordinance No. 12 of 1864 applies only where the original document is admissible. It does not make a copy admissible where the original is not.

Cur. adv. vult.

February 4, 1937. ABRAHAMS C.J.-

The appellant was convicted of transporting nine slabs of ganja without a permit and of possessing an excisable article the possession of which is totally prohibited. He was sentenced to six months' rigorous imprison